General Terms and Conditions

TERMS AND CONDITIONS

OFFER: Accelera Solutions, Inc. (“Accelera”) hereby offers for sale the goods and/or services (also referred to as “Deliverables”) described in an eQuote or Statement of Work (“SOW”) (collectively each is referred to as an “Order” and all as the “Orders”), and sale of any such Deliverables shall be subject to the terms and conditions contained herein (the “Terms”), which supersede and replace all prior terms, conditions, proposals or quotations exchanged by the parties. Any additional or different terms already or hereafter proposed by the buyer/client/customer (hereinafter “Customer”) are objected to by Accelera without need of further notice of objection, and will not be binding upon Accelera unless specifically agreed to in writing signed by Accelera (or included in an eQuote or SOW). In the event Accelera is not notified of Customer’s acceptance of an Order within 30 days of issuance of the same, the Order shall lapse and be considered null and void. Acceptance of these Terms occurs when Customer requests any goods or services covered by an Order through issuance of a purchase order or otherwise accepts the Order.

CONTENTS OF EACH ORDER: All services provided or goods delivered by Accelera under this Agreement shall be separately requested by Customer by means of an Order. Each Order shall contain the following information as applicable:

The services to be performed by Accelera or goods delivered by Accelera.

Any tangible Deliverables to be developed by Accelera.

Any acceptance criteria of any of such Deliverables.

Any target date to complete the work and any applicable milestones.

The labor category for work performed by Accelera and/or the method for computing compensation.

Each Order shall be mutually agreed upon in writing. In the event of any conflict or inconsistency between provisions of this Agreement and the provisions of an Order, the provisions of the Order shall control, but only for purposes of such Order and, except for such Order, the terms and conditions of this Agreement shall not be deemed to be waived, amended or modified. Accelera is not responsible for providing any services unless specifically requested pursuant to a written Order agreed to between the parties.

SHIPMENTS: All shipments of any goods supplied as part of the Deliverables are made F.O.B. point of shipment. Shipments are dispatched with cost of shipping advanced by Accelera (except as otherwise agreed to by the parties) and billed to Customer through an invoice. Requested delivery schedules of customers will be met to the best of Accelera’s ability. Accelera reserves the right to make partial shipments and each shipment may be invoiced separately. Title and risk of loss to items sold hereunder shall pass to Customer upon delivery of the items by Accelera to a public carrier or other agreed upon means of transportation. Accelera assumes no liability for any loss, damage, or destruction of products after delivery is made to the carrier. Shipments will be insured only at the request of and at the expense of Customer. If Customer asserts any claim for any loss or damage incurred against Accelera, it shall be done in writing five days from receipt of shipment.

CONSIDERATION AND TAXES: Customer shall pay Accelera in the manner and at the amounts specified in the applicable Order (including on a fixed fee or hourly basis) or, if no manner or rates are specified, then at Accelera’s base hourly rates as then in effect. The base hourly rates in effect for a particular calendar year are listed in Exhibit A to these Terms and Accelera will publish updates to the same from time to time on its website. Customer also shall reimburse Accelera for all reasonable travel and out-of-pocket expenses (including, without limitation, lodging, transportation, meal expenses and courier expenses) incurred by Accelera hereunder. Unless otherwise specified, all prices are stated without any applicable excise, sales, use, value, added, or other tax imposed upon the production, sales and/or delivery of the Deliverables. Any such taxes, when applicable, will be charged when assessed or due as separate additional items on invoices, unless valid exemption certificates are in the possession of Accelera before the date of shipment or rendering of services. In the event that Customer requests Deliverables pursuant to an Order but then fails to schedule the same within three (3) months from the date of the Order, Customer shall owe Accelera any expense incurred by Accelera relying upon the requested Deliverables including, but not limited to, any charge incurred by Accelera in cancelling or redirecting any requested goods and any labor charges incurred by Accelera in paying any staff it would have used on any requested services to the extent Accelera is not able to utilize said staff on alternate engagements.

INVOICE, PAYMENT AND SECURITY INTEREST:

Invoice and Payment. Accelera shall present an invoice to Customer for any services rendered or goods delivered after the end of each calendar month, or at intervals otherwise agreed to between the parties, for consideration due under the above provisions of Section 4 for services rendered or goods delivered pursuant to an Order. All orders are subject to approval of credit and Accelera may terminate any approved order if it learns of any issue that may adversely affect Customer’s credit. Accelera may also require an advance payment. All payments are due within thirty (30) days of the invoice date and past due accounts are subject to finance charges of 1-1/2% per month, 18% per annum on all overdue balances (from the invoice date). Accelera may also file a copy of these terms and conditions as a financing statement to perfect the security interest provided for below in Section 5.B.

Security Interest. Customer hereby grants Accelera a security interest in all goods covered hereunder as security for the performance by Customer of all its obligations hereunder. In the event (1) Customer defaults in the payment of any moneys due to Accelera hereunder beyond the tenth day after the same is due or (2) Customer defaults in the performance of any other obligation under these terms for a period of ten days after receipt by Customer of notice thereof from Accelera, then in any such event Accelera may at its option do any or all of the following: (1) terminate the sale; (2) whether or not this sale is terminated, take immediate possession of any or all goods wherever situated and for such purpose enter upon any premises without liability for so doing; and (3) sell, dispose of, hold, use or lease all or any goods as Accelera in its sole discretion may decide without any duty to account to Customer. Customer shall be fully liable for all damages as provided by law and for all costs and expenses incurred by Accelera as a result of any default by Customer hereunder including all court costs and reasonable attorneys’ fees, and a 15% restocking fee (or higher fee if charged by the applicable manufacturer) in the event that Accelera takes possession of any goods hereunder. The rights afforded Accelera under this paragraph shall not be deemed to be exclusive but shall be in addition to any rights or remedies provided by law.

OWNERSHIP OF DELIVERABLES:

Ownership. Any Deliverables created for Customer by Accelera hereunder shall be considered work(s) made by Accelera for hire and shall belong exclusively to Customer and its designees. To the extent that title to any such Deliverables may not, by operation of law, vest in Customer or that such Deliverables may not be considered “works made for hire,” Accelera hereby irrevocably assigns all rights, title and interest therein throughout the world to Customer.

Pre-existing Materials. Accelera shall retain, solely and exclusively, all continued right, title and interest in and to any and all of its proprietary information and Deliverables which were conceived, made, developed, produced, used or applied prior to performance of the Deliverables.

Development Tools. Notwithstanding any provision in these Terms to the contrary, any routines, libraries, tools, graphics, components, methodologies, processes or technologies created, adapted or used by Accelera in its business generally, including all associated intellectual property rights (collectively, the “Development Tools”) shall be and remain the sole property of Accelera and shall be protected as confidential information, and Customer shall have no interest in or claim to such Development Tools except as necessary to exercise its rights in the Deliverables. In addition, notwithstanding any provision of these Terms to the contrary, Accelera shall be free to use any ideas, concepts or know-how developed or acquired by Accelera during that performance of these Terms to the extent obtained and retained by Accelera’s personnel as impressions and general learning. Nothing in these Terms shall be construed to preclude Accelera from acquiring, developing, marketing or enhancing for itself or others similar technology performing the same or similar functions as the technology used or created pursuant to these Terms.

NO AGENCY AND DELAYS:

No Agency. Nothing contained herein shall constitute a partnership or joint venture, nor make either party the agent or representative of the other. Neither party has authority to bind the other or incur any liabilities on behalf of the other, nor to direct the employees of the other.

Delays. Accelera will not be liable for delays in performance, including delivery, or for failures to perform, including failure to deliver, due to (a) any causes beyond Accelera’s reasonable control, including Accelera’s inability to obtain necessary materials, components, services or facilities, or (b) Acts of God, acts of Customer, acts of civil or military authorities, governmental regulations or priorities, strikes or other labor disturbances, fires, riots, wars, or natural disasters, including epidemics, droughts, floods, or transportation interruptions. Accelera will promptly notify Customer of any material delay and will specify a revised performance date as soon as practicable. In the event of such delay, the performance requirements of an Order will not be terminated and the date of performance will be extended for a period of time equal to the period of the delay.

INDEMNIFICATION: Except to the extent specifically provided for herein, Customer shall indemnify and hold harmless Accelera from any loss, claim or damage, including reasonable attorney fees, to persons or property arising out of (a) any services provided by Customer to its customers or otherwise or (b) the use of any Deliverables developed hereunder, including but not limited to liability for patent, trademark or copyright infringement arising out of such use.

WARRANTIES/DISCLAIMERS: EXCEPT AS SET FORTH BELOW IN SECTION 11 WITH RESPECT TO DEFECTIVE WORK, ACCELERA MAKES NO WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, WITH RESPECT TO ANY GOODS OR SERVICES SOLD HEREUNDER, ALL OF WHICH ARE PROVIDED “AS IS.” NEITHER DOES ACCELERA WARRANT THE PRODUCTS OF ANY THIRD PARTY MANUFACTURER OR LICENSOR WHICH MAY BE USED OR SUPPLIED WITH THE ACCELERA PRODUCTS OR SERVICES, AND CUSTOMER AGREES TO LOOK ONLY TO SUCH THIRD PARTIES FOR ANY WARRANTY CLAIM RELATING THERETO. ACCELERA EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF WORKMANLIKE QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. ACCELERA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE ACCELERA PRODUCT(S) OR SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE ACCELERA PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ACCELERA OR ANY ACCELERA AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ACCELERA’S LIABILITY. THE ABOVE EXCLUSIONS SHALL NOT APPLY TO THE EXTENT A JURISDICTION DOES NOT ALLOW FOR APPLICATION OF THE SAME. CUSTOMER’S EXCLUSIVE REMEDY AND ACCELERA’S ENTIRE LIABILITY UNDER THIS AGREEMENT IS AS SET FORTH BELOW IN SECTIONS 10 AND 11.

LIMITATIONS OF LIABILITY:

RESTRICTIONS ON TYPE OF LIABILITY. ACCELERA WILL NOT UNDER ANY CIRCUMSTANCE, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR EXEMPLARY DAMAGES, HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF OR DAMAGE TO ANY ASSOCIATED EQUIPMENT OR DATA, COST OF CAPITAL, COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES, DOWNTIME COSTS, OR CLAIMS OF CUSTOMER’S CUSTOMERS, ARISING OUT OF THE USE OF OR INABILITY TO USE ACCELERA PRODUCTS OR SERVICES, EVEN IF ACCELERA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MAXIMUM LIABILITY. ACCELERA’S LIABILITY ON ANY CLAIM OF ANY KIND WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE FOR ANY LOSS OR DAMAGE ARISING OUT OF, RESULTING FROM, OR CONCERNING ANY ASPECTS OF THESE TERMS OR FROM THE GOODS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED THE AMOUNT OF COMPENSATION PAID AND DUE BY CUSTOMER PURSUANT TO THE ORDER OUT OF WHICH THE CLAIM AROSE FOR THE THREE MONTH PERIOD ENDING ON THE LAST DAY OF THE LAST FULL MONTH TO BE COMPLETED PRIOR TO THE DATE THE APPLICABLE CLAIM FIRST AROSEAND ANY CLAIM FOR DEFECTIVE WORK SHALL BE LIMITED TO THE EXTENT PROVIDED FOR BELOW IN SECTION 11. NO CLAIM MAY BE BROUGHT AGAINST ACCELERA MORE THAN ONE YEAR AFTER ANY CAUSE OF ACTION ACCRUES.

DEFECTIVE WORK: Accelera will, at its sole option, (a) repair, replace or re-perform (at its option) or (b) refund the fee paid for, any defective good or service which is returned or rejected within 30 days of receipt by purchaser or performance by Accelera. Any return of goods must be made in accordance with return instructions provided by Accelera. Services are defective only to the extent they are not performed in a professional and workmanlike manner or do not conform to reasonable industry standards. Goods are defective only to the extent they fail to conform to specifications.

SUPPORT SERVICES: Accelera is not obligated to provide any support services except as indicated on the front of an Order. Any such services are subject to these Terms and any other terms which may be stipulated in a separate document or on the front of an Order.

NON-SOLICITATION OF EMPLOYEES OR CONSULTANTS: Customer acknowledges that Accelera provides a valuable service by identifying and assigning employees or consultants for the provision of goods or services to Customer hereunder. Customer further acknowledges that Customer would receive substantial additional value, and Accelera would be deprived of the benefits of its work force, if Customer directly hires Accelera’s employees or consultants after they have been introduced to Customer by Accelera. Therefore, during the term of Accelera providing services or goods hereunder and for a period of two (2) years thereafter, Customer shall not, directly or indirectly, or through the use of others, retain the services of any employee or consultant of Accelera who provided services to Customer hereunder (or any such worker who resigned from Accelera within the six month period leading up to the date of any solicitation by Customer), except through Accelera. Both parties recognize the difficulty and uncertainty of demonstrating the amount of damages that would result in the event of a breach of this provision, therefore, both parties agree that an equitable measure of such damage is thirty percent (30%) times the greater of (a) the most recent monthly gross billing of such person by Accelera to its clients times twelve (12), or (b) the most recent monthly rate of salary or other compensation paid to such person times twelve (12). Therefore, in the event of a breach of this provision, in addition to the remedies provided for elsewhere in these Terms, Customer shall pay to Accelera as liquidated damages and not as a penalty the amount resulting from thirty percent (30%) times the greater of (a) or (b) hereinabove. The foregoing restriction shall not apply with respect to any former Accelera employee or consultant that Accelera terminated.

INDEPENDENT CONTRACTOR: It is understood and agreed that Accelera, in the rendition of services hereunder, is acting as an independent contractor and not as an agent or representative of Customer. Customer shall not be responsible to Accelera or any governing body for any payroll-related taxes in connection with the performances of the services. Accelera acknowledges that it will pay all such taxes and any insurance coverage as required by federal or state law including workman’s compensation insurance.

TERMINATION:

Termination. Any agreement to provide goods or services pursuant to an Order may be terminated (1) by an aggrieved party, effective immediately upon written notice by the aggrieved party if the breaching party commits a material breach of any of the terms of these Terms (including the failure of Customer to timely pay Accelera for Deliverables rendered hereunder which is specifically deemed a material breach) and such breach remains uncured for five (5) days after written notice of such breach has been furnished to the breaching party or (2) by any party, immediately upon the other party’s insolvency, filing of a petition in bankruptcy, making an assignment for the benefit of creditors, becoming subject to any proceeding under bankruptcy or insolvency law, or winding up or liquidation, voluntarily or otherwise. In the event of termination, Customer shall pay Accelera for any goods delivered or services rendered (and any reimbursable expenses incurred) by Accelera up to the effective date of termination and any applicable restocking fees, which payment shall be made to Accelera no later than thirty days (30) from such date of termination.

Survival of Terms. In the event of termination, the provisions set forth above in Sections 5-11 and Sections 13, 15, 17 and 18 shall survive.

ASSIGNABILITY: Neither party may assign or transfer any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily, or by operation of law, without the prior written consent of the other party; provided, however, this Agreement shall be automatically assigned upon written notice to the other party, to any successor in interest by way of merger, consolidation, or sale of all or substantially all of its assets. These Terms shall be binding upon and shall inure to the benefit of the successors and permitted assigns of each party.

DISPUTES: Customer expressly agrees that this contract shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall be interpreted and governed by the laws of the United States and the Commonwealth of Virginia. Any dispute arising out of these Terms, except with respect to Section 13 above, shall be settled by final and binding arbitration conducted in Fairfax County, Virginia by one neutral arbitrator knowledgeable in the subject matter covered by these Terms, in accordance with this Section and the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The successful party in the arbitration shall be awarded by the arbitrator that party’s costs and expenses, including attorneys’ fees and administrative fees of the AAA. An award may be confirmed and judgment entered in any court having competent jurisdiction. Except as otherwise provided for herein, any litigation initiated under such act or otherwise shall be conducted in a court of competent jurisdiction located in Northern Virginia.

MISCELLANEOUS:

Notices. Any notice or other communication required to be given or made under these Terms shall be in writing and shall be given to the point of contact, address (electronic or regular mail) or facsimile number of the other party listed in the Order. No communication or notice shall be effective if the party to receive such communication or notice has notified the sender of a change in and a replacement point of contact or address/facsimile in accordance with the foregoing procedures for sending notices unless such communication or notice is sent to the replacement point of contact and address/facsimile in accordance with the foregoing procedures. Notices and communications shall be considered given or made: where sent by hand or courier, upon receipt unless delivery is refused in which case on the date of refusal; where sent by U.S. Mail, first class postage pre‑paid, on the third working day following the date of posting; or where given by facsimile or electronic mail (subject to confirmation being sent by first class postage pre‑paid and to retention by the sending party of confirmation of successful transmission), four hours after the time of successful transmission.

Opt-In. By accepting this order and these terms and conditions Customer hereby is opting-in to Accelera’s email notification program. In order to opt-out of this program please contact your Accelera Point of Contact.

Severability. If any provision of these Terms is held invalid, all other provisions of these Terms shall remain in effect; PROVIDED, HOWEVER, that the invalid provision may be modified by the parties, an arbitrator or a court of law, as needed to make such provision valid.

Export Regulations. Software, including technical data, is subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licenses to export, re-export, or import Accelera products.

Amendment. These Terms are subject to change at Accelera’s sole discretion and without notification other than posting of the new terms and conditions on the website of Accelera. The Terms that apply to a particular sale are the Terms in effect on the date Customer accepts these Terms as provided for above in Section 1.

Entire Agreement; No Waiver. These Terms (and any provisions of any Order) constitute the entire agreement between the parties concerning the subject matter hereof, superseding all prior and contemporaneous negotiations and discussions. The terms of the Order are incorporated herein by this reference. No waiver of any provision of these Terms shall be effective unless in writing and signed by both parties. The failure of any party to insist in any one (1) or more instances on strict performance of any of the terms and conditions of these Terms, or the failure to exercise any right or privilege contained in these Terms, or the waiver of any breach of the terms and conditions of these Terms, shall not be considered as thereafter waiving any such terms, conditions, rights or privileges and the same shall continue and remain in full force and effect as if no waiver has occurred.